« EdellinenJatka »
of the peace (3). This they may do in any cases where they have a jurisdiction over the offence; in order to compel the person accused to appear before them (b): for it would be absurd to give them power to examine an offender, unless they had also a power to compel him to attend, and submit to such examination. And this extends undoubtedly to all treasons, felonies, and breaches of the peace (4); and also to all such offences as they have power to punish by statute (5). Sir Edward Coke indeed (c) hath laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found and the contrary practice is by others (d) held to be grounded rather upon connivance than the express rule of law; though now by long custom established. A doctrine which would in most cases give a loose to felons to escape without punishment; and therefore sir Matthew Hale hath combated it with invincible authority and strength of reason: maintaining, 1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted (e) (6); and, 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed (ƒ). This warrant ought to be under the hand and seal of the justice (7), should set forth the time and
(b) 2 Hawk. P. C. 84.
(c) 4 Inst. 176.
(d) 2 Hawk. P. C. 84.
mons (14 East. 1. 163,) or house of lords, (8 T. R. 314,) or by a judge of the court of king's bench. 1 Hale, 578; and see 48 Geo. III. c.
When the offender is not likely to abscond before a warrant can be obtained, it is in general better to apprehend him by a warrant, than for a private person, or officer, to arrest him of his own accord, because if the justice should grant his warrant erroneously, no action lies against the party obtaining it. 3 Esp. 166, 7. And if a magistrate exceed his jurisdiction, the officer who executes a warrant is protected from liability, and the magistrate himself cannot be sued until after a month's notice of action, during which he may tender amends, 24 Geo. II. c. 44, see ante, 1 book, 354. n. 37; and no action can be supported against the party procuring the warrant, though the arrest was without cause, unless it can be proved that the warrant was obtained maliciously. 1 T. R. 535. 3 Esp. R. 135.
(3) In New-York, arrests for any criminal offence may be directed by justices of the peace, and by the chancellor, judges of the supreme court, of the superior court of the city of New-York; circuit judges; judges of county courts, mayors, recorders, and aldermen of cities: supreme court commissioners; and by the special justices and assistant justices of the city of New-York; and by no others. 2 R. S. 706, § 1.
(4) Perjury and libels, 4 J. B. Moore, 195. VOL. II.
(e) 2 Hal. P. C. 108.
1 B. & B. 548. Gow. 84. Fortes. 37. 358. 140. 11 St. Tr. 305. 316. 2 Wils. 159. 160, and nuisances, when persisted in, Vent. 169. 1 Mod. 76. 5 Mod. 80. 142. 6 Mod. 180, subject the offender to such criminal process. And there are some misdemeanors for which particular acts of parliament expressly authorize a justice of the peace to issue his warrant, as, for keeping a disorderly house, 25 Geo. II. c. 36. s. 6, or obtaining inoney under false pretences. 30 Geo. II. c. 24. In modern practice, however, it is not usual for a justice out of sessions to issue a warrant for a libel on a private individual, or for perjury; though where an illegal publication is manifestly dangerous in its tendency to the public interests, they will exercise that discretion with which long practice has invested them. 4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. This also they will always do on the commission of any misdemeanor, which involves an attempt to perpetrate a felony. And when assembled in session, they may issue a warrant against a party suspected of perjury, even though he has not been indicted."
(5) Where a statute gives a justice jurisdiction over an offence, it impliedly gives him power to apprehend any person charged with such offence; and especially after a party has neglected a summons. 2 Bing. 63. Hawk. b. 2. c. 13. s. 15. 12 Rep. 131. b. 10 Mod. 248. (6) See accordingly, 2 R. S. 706, § 3. (7) But it seems sufficient if it be in writ
place of making, and the cause for which it is made, and should be [*291] directed to the constable or other peace-officer (or, it may be, to any private person by name) (g) (8), requiring him to bring the party either generally (9) before any justice of the peace for the county or only before the justice who granted it; the warrant in the latter case being called a special warrant (h). A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty (i); for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons, guilty of a crime therein specified, is no legal warrant for the point, upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon, be really guilty or not (10). It is therefore in fact no warrant at all; for it will not justify the officer who acts under it (k): whereas a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction), will by statute 24 Geo. II. c. 44. at all events indemnify the officer who executes the same ministerially. And when a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends. A warrant from the chief, or other, justice of the court of king's bench extends all over the kingdom and is teste'd, or dated, England; not Oxfordshire, Berks, or other particular county. But the warrant of a justice of the peace in one county,
as Yorkshire, must be backed, that is, signed by a justice of the  peace in another, as Middlesex, before it can be executed
there (11). Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county: but the practice of backing warrants had long prevailed without law, and was at last authorized by statutes 23 Geo. II. c. 26. and 24 Geo. II. c. 55. And now, by statute
(g) Salk. 176.
(h) 2 Hawk. P. C. 85.
(i) 1 Hal. P. C. 580. 2 Hawk. P. C. 82.
(k) A practice had obtained in the secretaries' office ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, or publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was
ing and signed by him, unless a seal is express ly required by a particular act of parliament. Willes Rep. 411. Bull. N. P. C. 83.
In New-York a seal is not required, (2 R. S.706, 3) and the warrant is to be returned before the officer who issued it: Id.
(8) It has recently been decided, that warrants may be directed to officers either by their particular names or by the description of their office; and that in the first case, the officer may execute the warrant any where within the jurisdiction of the magistrate who issued it; in the latter case, not beyond the precincts of his office. And where a warrant of a magistrate was directed "To the constables of W. and to all other his majesty's officers," it was held that the constables of W. (their names not being inserted in the warrant) could not execute it out of the district. 1 Bar. & Cres. 288. 2 D. & R. 444. If an act of parliament direct that a justice shall grant a warrant, and do not state to whom it shall be
inadvertently continued in every reign, and under every administration, except the four last years of queen Anne, down to the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers of a certain seditious libel, its validity was disputed; and the warrant was ad judged by the whole court of king's bench, to be void, in the case of Money v. Leach. Trin. 5 Geo. III. B. R. After which the issuing of such general warrants was declared illegal by a vote of the house of commons. (Com. Journ. 22 Apr. 1766.)
directed, it must be directed to the constable. and not to the sheriff, unless such power be given by the act. 2 Ld. Raym. 1192. 2 Salk. 381. sed vid. 1 H. Bla. 15, notis. These distinctions are now rendered immaterial by the 5 Geo. IV. c. 18. s. 6, whereby the constable, or any other peace-officer, of any parish or place, may execute any warrant within the magistrate's jurisdiction, whether the warrant be addressed to him by name or not; or whether he be a constable or peace-officer, &c. of the place in which he executes the warrant.
(9) The warrant need not state the time when the party is to be brought before the magistrate for examination. Fort. 143. 8 T. R. 110.
(10) General warrants to take up loose, idle, and disorderly people, 3 Burr. 1766, and search warrants, Hawk. b. 2. c. 13. s. 17. n. 6. are the only exceptions to this rule.
(11) So in New-York. (2 R. S. 707, § 5.)
13 Geo. III. c. 31. any warrant for apprehending an English offender, who may have escaped into Scotland, and vice versa, may be endorsed and executed by the local magistrates, and the offender conveyed back to that part of the united kingdoms, in which such offence was committed (12).
2. Arrests by officers without warrant, may be executed, 1 By a justice of the peace; who may himself apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence (1). 2. The sheriff (13), and, 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke (m), hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before & justice of the peace. And, in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon (14); and for that purpose is authorized (as upon
(4) 1 Hal. P. C. 86.
(12) And now by the 44 Geo. III. c. 92. if any offender has escaped from Ireland into England or Scotland, or vice versa, he may be apprehended by a warrant endorsed by a justice of the peace of the county or jurisdiction within which the offender shall be found; and he may be conveyed to that part of the united kingdom, in which the warrant issued, and the offence is charged to have been committed.
By the 54 Geo. III. c. 186. all warrants is sued in England, Scotland, or Ireland, may be executed in any part of the United Kingdom. Independently of this the secretary of state for Ireland may, by his warrant, remove a prisoner there to be tried in England, for an offence committed in the latter, 3 Esp. Rep. 178; and an English justice may commit a person here who has committed an offence in Ireland, preparatory to sending him thither for trial. 2 Stra. 848. 4 Taunt. 34.
With respect to the time of arresting a person. A person may be apprehended in the night as well as the day, 9 Co. 66; and though the statute 29 Car. II. c. 7. s. 6. prohibits arrests on Sundays, it excepts the cases of treasons, felonies, and breaches of the peace: in these cases, therefore, an arrest may be made on that day. Cald. 291. 1 T. R. 265. Willes,
As to the place in which a party may be arrested. Since the privileges of sanctuary and abjuration were abolished, by 21 Jac. I. c. 28, no place affords protection to offenders against the criminal law. And even the clergy may, on a criminal charge, be arrested whilst in their churches, Cro. Jac. 321. though it is illegal to arrest them in any civil case, whilst in the church to perform divine service, or going
It seems extremely doubtful whether this decision should be followed in the U. S. without a treaty for that purpose; see the case of Carrara, alias Polari, in the New-York American for the country, for Oct. 7, 1831, decided by Mr. Recorder Riker, according to the case in Taunton, and in favour of the constitutionality of the law of New-York authorizing the surrender of criminals flying from foreign Countries. See the cases there referred to, 4
(m) See book I. page 355.
to or returning from the same on any day. Bac. Ab. Trespass, D. 3. And if a person having committed a felony in a foreign country comes into England, he may be arrested here, and conveyed and given up to the magistrates of the country, against the laws of which the offence was committed. 4 Taunt. 34.†
It may be here observed as a general rule, that if the warrant be materially defective, or the officer exceed his authority in executing it, and if he be killed in the attempt, this is only manslaughter in the party whom he endeavoured to arrest, 1 East P. C. 310. 1 Leach, 206. 6 T. R. 122. 5 East. 308. 1 B. & C. 291; and any third person may lawfully interfere to prevent an arrest under it; doing no more than is necessary for that purpose. 5 East, 304, 8. 1 Leach, 206.
(13) And the sheriff may arrest, though the party be merely suspected of a capital offence, 2 Hale, 87; and if the sheriff be assaulted in the execution of his office, he may arrest the offender. 1 Saund. 77. 1 Taunt. 146.
(14) A constable may justify an imprisonment, without warrant, on a reasonable charge of felony made to him, although he afterwards discharges the prisoner without taking him before a magistrate, and although it turn out that no felony was committed by any one, Holt C. N. P. 418. Cald. 291; and the charge need not specify all the particulars necessary to constitute the offence. R. & R, C. C. 329. In general, however, a constable cannot, without an express charge or warrant, justify the arrest of a supposed offender, upon suspicion of his guilt, unless some actual felony has been committed, and there is reasonable cause for the suspicion that the party imprisoned is Johns. Ch. R. 106 (in 1819). 2 Wheeler's R. (in 1823). 5 Wheat. R. note 1. Letter of Mr. Jefferson to Mr. Genet, 12 Sept. 1793, (1 Amer State Papers, 176.) Mr. Monroe's instructions to the American Comm'rs. id. 9 vol. p. 347 (in 1813). Mr. Livingston's letter to Gov. Throop, 24 Aug. 1831. Amer. Jurist, No. 2. p. 304. See also 1 R. S. 164, § 8, &c.: 2 Id. 748, 45. And see note (8), p. 353, Hov. notes, at end.
a justice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and, if he or his assistants be killed in attempting such arrests, it is murder in all concerned (n). 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I. c. 4. to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night-walkers, and commit them to custody till the morning (o) (15). 2. Any private person (and a fortiori a peace-officer) that is [*293] present when any felony is committed, is bound by the law to *arrest the felon, on pain of fine and imprisonment, if he escapes through the negligence of the standers-by (p). And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make such arrest, it is murder (q). Upon probable suspicion also a private person may arrest the felon, or other person so suspected (r) (16). But he cannot justify breaking open doors to do it;
(n) 2 Hal. P. C. 88,89.
(0) Ibid. 98.
(p) 2 Hawk. P. C. 74.
guilty. 4 Esp. Rep. 80. Hoft C. N. P. 478. Hawk. b. 2. 12. s. 16. 2 Hale, 92. 89. n. f. Cald. 291; and a constable is not justified in apprehending and imprisoning a person on suspicion of having received stolen goods, on the, mere assertion of one of the principal felons. 2 Stark. 167. There are, however, authorities in favour of an exception to this rule in the case of night-walkers, and persons reasonably suspected of felony in the night. 3 Taunt. 14.1 East P. C. 303. Hawk. b. 2. c. 12. s. 20. 2 Hale, 89. 5 Edw. 3. c. 14. 2 Inst. 52. Bac. Ab. tit. Constable, G. And, by a modern act of parliament, an express pow. er is given to constables and other peace-officers, when on duty, to apprehend every person who may reasonably be suspected of having, or carrying, or by any ways conveying, at any time, after sun-setting and before sun-rising, goods suspected to be stolen. 22 Geo. III. c. 58. s. 3. 54 Geo. III. c. 57. s. 16, 17, 18. And other statutes, 32 Geo. III. c. 53. s. 17. 51 Geo. III. c. 119. s. 18 and 24, authorize constables and other peace-officers to apprehend evil-disposed and suspected persons and reputed thieves. Thus, by the 32 Geo. III. c. 53. s. 17, constables, headboroughs, patroles, and watchmen, are empowered to apprehend reputed thieves frequenting the streets, highways, and avenues of public resort, and convey them before a proper magistrate. And in order to give more effect to the public office at Bow-street, the 51 Geo. III. c. 119. s. 24. and 54 Geo. III. c. 37. s. 16, 17, 18, direct two magistrates of that office (of whom the chief magistrate must be one), to swear in men to act as constables for Middlesex, Surrey, Essex, Kent, and Westminster, and enable the persons so sworn to apprehend offenders against the peace, both by night and by day, with all the powers which other constables possess.
(15) But at common law, no peace-officer is justified in taking up a night-walker, unless
(g) 2 Hal. P. C. 77.
(r) Stat. 30 Geo. II. c. 24.
he has committed some disorderly or suspicious act. Bac. Ab. Trespass, D. 3. 2 Lord Raym. 1301.
(16) Where a felony has been actually committed, a private person acting with a good intention, and upon such information as amounts to a reasonable and probable ground of suspicion, is justified in apprehending without a warrant the suspected person in order to carry him before a magistrate. Cald. 291. 4 Taunt. 34, 5. Price, 525. But where a private person had delivered another into the custody of a constable, upon a suspicion which appeared afterwards to be unfounded, it was held that the person so arrested might maintain an action of trespass for an assault and false imprisonment against such private person, although a felony had been actually committed. 6 T. R. 315.
With respect to interference, and arrests in order to prevent the commission of a crime any person may lawfully lay hold of a lunatic about to commit any mischief, which, if com mitted by a sane person, would constitute a criminal offence; or any other person whom he shall see on the point of committing a treason or felony, or doing any act which will manifestly endanger the life or person of another, and may detain him until it may be reasonably presumed that he has changed his purpose; but where he interferes to prevent others from fighting, he should first notify his intention to prevent the breach of the peace. Hawk b. 2. c. 12. s. 19. 1 Hale, 589. 2 Rol. Ab. 559. E. pl. 3. n. 8. Selw. 3d ed. 830. Com. Dig. Pleader, 3 M. 22. Bac. Abr. Trespass, D. 3. 1 East P. C. 304. Thus any one may justify breaking and entering a party's house and imprisoning him, to prevent him from murdering his wife, who cries out for assistance. 2 B. & P. 260. Selw. 3d ed. 830. Bac. Abr. Trespass, D. 3. And the riding in a body to quell a riot is lawful, and no information will be granted for small irregularities in the pursuit
and if either party kill the other in the attempt, it is manslaughter, and no more (s). It is no more, because there is no malicious design to kill: but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.
4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is, upon an hue and cry raised upon a felony committed. An hue (from huer, to shout, and cry), hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another (t). It is also mentioned by statute Westm. 1. 3 Edw. I. c. 9. and 4 Edw. I. de officio coronatoris. But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I. c. 1. and 4. which directs, that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town and the towns near; and so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And, that such hue and cry may more effectually be made, the *hun- [*294] dred is bound by the same statute, cap. 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred (u), in case of any loss by robbery. By statute 27 Eliz. c. 13. no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16, the constable or like officer, refusing or neglecting to make hue and cry, forfeits 5l.: and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes (17). An institution which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century; which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officer of justice, responsible for all the robberies committed within their respective districts (w). Hue and cry (x) may be raised either by precept of a justice of the peace, or by a peace-officer, or by any private man that knows of a felony. The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification, as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace (y).
(s) 2 Hal. P. C. 82, 83.
(t) Bracton, 1. 3, tr. 2, c. 1, 6 1. Mirr. c. 2, ◊ 6. (u) See Book III. page 161.
of such a design. 1 Bla. Rep. 47. 1 B. & P. 264. n. a. 1 East P. C. 304. If a man be found attempting to commit a felony in the night, any one may apprehend and detain him
(w) Mod. Un. Hist. vi. 383. vii. 156.
(y) 1 Hawk. P. C. 75.
till he be carried before a magistrate. 1 R. & M. C. C. 93.
(17) These acts are all repealed by 7 and 8 Geo. IV. c. 27.